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Dinshaw Jamshed Irani Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 293 of 1984
Judge
Reported in1990(26)LC583(Bombay)
AppellantDinshaw Jamshed Irani
RespondentUnion of India (Uoi) and ors.
Excerpt:
fera - detention of traveller's cheque amount for payment of penalty imposed. court orders deposit of amount subject to adjustment on decision of appeal either way. - code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code,..........a vessel. on 15th january 1983 while the petitioner was in pune, his residence was raided by the enforcement directorate. a number of documents were seized, to with (a) his passport, (b) 20 traveller's cheques of the standard chartered bank, bombay branch of the total value of 700 pounds, (c) a cheque of the city bank of new york for $ 8500 and (d) other documents.3. it is not in dispute that the petitioner's passport has been returned to him. it is also not in dispute that the cheque for $ 8500 of the city bank of new york has already become outdated. the petitioner's learned counsel mr. berarwalla states that the petitioner is not interested in the 'other documents' referred to in prayer (a) of the petition and that he confines his present petition only to the return of the 20.....
Judgment:

Lentin, J.

1. The petitioner seeks the return of certain documents seized from his possession in the course of a. raid by the enforcement directorate.

2. The petitioner is a non-resident Indian. He holds a British Passport issued to him on 15th August 1977. He in employed as a senior marine engineer on diverse vessels. In 1960-61 the petitioner settled abroad. However he paid occasional visits to Pune down the years. In l970, the petitioner got married in Pune where his wife and two children reside permanently. They are Indian citizens. In 1981 the petitioner came to Pune where he remained till 1983 before joining his duty on board a vessel. On 15th January 1983 while the petitioner was in Pune, his residence was raided by the enforcement directorate. A number of documents were seized, to with (a) his passport, (b) 20 traveller's cheques of the Standard Chartered Bank, Bombay branch of the total value of 700 pounds, (c) a cheque of the City Bank of New York for $ 8500 and (d) other documents.

3. It is not in dispute that the petitioner's passport has been returned to him. It is also not in dispute that the cheque for $ 8500 of the City Bank of New York has already become outdated. The petitioner's learned Counsel Mr. Berarwalla states that the petitioner is not interested in the 'other documents' referred to in prayer (a) of the petition and that he confines his present petition only to the return of the 20 traveller's cheques of the Standard Chartered Bank, Bombay branch of the total value of 700 pounds.

4. It is not in dispute that after these documents were seized by the enforcement directorate on 15th January 1983, no proceedings were initiated against the petitioner within one year thereof and that it was only on 16th February 1984 that a show cause notice was issued to the petitioner after the filing of the present petition on 8th February 1984.

5. The gravamen of the petitioner's grievance as urged by Mr. Berarwalla is that under Section 41 of the Foreign Exchange Regulation Act the enforcement directorate was not entitled to retain the 20 traveller's cheques of the total value of 700 pounds, for a period exceeding one year from the date of the seizure which was effected on 15th January 1983. It is not in dispute that during this statutory period mentioned in Section 41, these traveller's cheques have in fact not been returned. It is also not in dispute that these traveller's cheques have been encashed and the proceeds are lying in a separate account with the enforcement directorate. Here it may be mentioned that as a result of the show cause notice dated 16th February 1984 issued by the enforcement directorate, an order has been passed by the Deputy Director levying a penalty of Rs. 15,000/- on the petitioner. However the traveller's cheques of 700 pounds are ordered to be returned to the petitioner and since they have been encashed by the directorate as stated earlier, the equivalent thereof in Indian currency is to be returned to the petitioner. Against the order levying penalty the petitioner has preferred an appeal to the requisite authority. That appeal is pending.

6. Mr. Rege, the learned Counsel appearing on behalf of the respondents, states that the only reason why the proceeds in Indian currency of the traveller's cheques of 700 pounds have not been returned to the petitioner is that he is out of India and that the directorate will have no means of recovering the penalty of Rs. 15,000/- in the event of the petitioner failing in his appeal. After obtaining instructions from Enforcement Officer Mr. Ganguly who is present in Court, Mr. Rege is agreeable that the directorate will deposit in Court on or before 1 5th February 1985 the equivalent in Indian currency of the traveller's cheques aggregating to 700 pounds which have already been encashed with such interest accrued pending the disposal of the appeal filed by the petitioner. Mr. Berarwalla has no objection.

7. Accordingly by consent of parties it is ordered as under:

(a) the enforcement directorate shall on or before 15th February 1985 deposit in Court the equivalent in Indian currency of the traveller's cheques aggregating to 700 pounds already encashed together with interest accrued thereon The Prothonotary and Senior Master shall invest the said amount in fixed deposit with a nationalised bank initially for a period of one year and thereafter for such further period as he may deem fit.

(b) in the event of the penalty of Rs. 15,000/- being upheld by the appellate board, the enforcement directorate shall be at liberty to withdraw from the Prothonotary and Senior Master the amount. lying deposited with him together with interest towards the penalty.

(c) in the event of the penalties being set aside in full or in part by the Appellate Board, the petitioner shall be at liberty to withdraw the amount deposited in Court together with interest in full or such amount after making provision for the balance of the penalty, if any, upheld by the Appellate Board. In the latter event the directorate shall be at liberty to withdraw the balance of the amount from the Prothonotary and Senior Master.

8. The writ petition is accordingly disposed of and the rule is made absolute in terms recorded by consent above. There will be no order as costs.


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